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President's Message (Arlene Ellis)
Roe v. Wade
Privacy
Supreme Court Decision May Have a Chilling Effect
General Membership Meeting
Councilman Gary Gill on Downtown Heights and Rail Transit
Rosalie Goodman Internship Program
Dialog - Honolulu: How High?
Letter to the Editor: Re: Diamond Head Preservation (Mildred Walston)
Studio threatens vow to preserve Diamond Head (Luci Pfaltzgraff)
LVW Presents
Dialog - "Brain Drain"
Recycling
Initiative
Kate Kortschak
1989-90 Roster

Supreme Court Decision May Have a Chilling Effect

BACKGROUND

The U.S. Supreme Court, in its 1973 decision of Roe vs. Wade, established the constitutional right to reproductive autonomy, i.e., to choose abortion.

In 1985 the Justice Department filed an amicus curiae brief on Thornburg vs. American College of Obstetricians and Gynecologists (ACOG), urging the Supreme Court to overturn its Roe vs. Wade decision as it reviewed a Pennsylvania law. The Pennsylvania law discouraged women from having abortions.

The LWVUS joined an amicus curiae brief filed by NOW urging the Supreme Court to reaffirm the Roe decision.

In 1986 the Supreme Court declared the Pennsylvania law unconstitutional and upheld women's right to reproductive choices on abortion.

Last year the Justice Department, with the concurrence of the state of Missouri, again urged the Supreme Court to reconsider its Roe decision as it reviewed a Missouri law in Webster vs. Reproductive Health Services.

The Webster vs. Reproductive Health Services case involved a challenge to provisions of a 1986 Missouri law that restricted access to abortions. The U.S. Court of Appeals for the Eighth Circuit declared the Missouri statutory provisions unconstitutional based on the Supreme Court's decisions of Roe and ACOG.

WEBSTER VS, REPRODUCTIVE HEALTH SERVICES

The U.S. Supreme Court, in Webster vs. Reproductive Health Services, upheld every provision of, the Missouri statue including:

  1. A definition of human life as beginning at conception and giving unborn children protectable interests in life, health and well-being.

  2. A requirement that expensive, risky and usually medically unnecessary tests be performed if the doctor believes a patient requesting an abortion is 20 or more weeks pregnant.

  3. A ban on the use of public funds for counseling women about abortion.

  4. A ban on the use of public facilities, including hospitals, and public employees to perform or assist in an abortion not necessary to save the life of the mother.

IMPACT

In deciding the Webster case the Supreme Court could have overturned the Roe decision. While the Court did not overturn Roe, it did not affirm the rights given there because it upheld some very restrictive provisions in a Missouri statute.

The effect of this decision is to open the door to laws inhibiting the right to abortion and prohibiting it at earlier stages than was permissible under Roe.

For example, the decision upheld a requirement that expensive, risky and usually medically unnecessary tests be performed if the doctor believes a.. patient requesting an abortion is 20 or more weeks pregnant.

The result of such a requirement is two-fold: on the one hand it may well inhibit women from seeking abortions, on the other hand it may give a doctor a way to decline performing an abortion.

The difficulty here is that the 20-week point is earlier than that used in Roe to define viability (which was 23-24 weeks).

Thus, other states may see this as a signal that they can set an even earlier cutoff point for determining viability.

The fact that. the Court did not strike down language in the Missouri law, which defined human life as beginning at conception and giving unborn children protectable interests in life, health and well-being, may additionally support such decisions by state legislatures.

It is clear, too, that the Webster decision can have a chilling effect on the ability to learn about options available to the pregnant woman because it upheld a ban on the use of public funds for counseling women about abortion. In addition, the burden of this case will be severely felt by poor women since another provision upheld was a ban on the use of public facilities, including hospitals, and public employees to perform or assist in an abortion not necessary to save the life of the mother.

Although the Court did not go so far as to overturn Roe vs. Wade, the landmark decision legalizing abortion, the Court did accept for review three more abortion cases, any of which can provide a vehicle for overturning Roe.

AMICI CURIAE

The League of Women Voters joined 76 organizations in submitting a brief as amici curiae supporting the appellees, Reproductive Health Services in the case before the Supreme Court, William L. Webster, et. al. vs. Reproductive Health Services, et. al. The following are taken from the brief.

Restrictive abortion laws interfere with women's constitutional right to liberty by restricting their ability to make fundamental decisions about their bodies and lives.

Although a woman's right to choose abortion is protected by the constitutional right to liberty, it also should be seen in terms of women's right to equality.

If the Supreme Court upholds abortion restrictions forcing pregnant women to bear children, then it would make the constitutional promise of liberty empty. And it would make it empty only for women because men are not required to endure comparable burdens in reproduction.

To ensure the constitutional guarantee of liberty extends to women as well as to men the Supreme Court must protect women's right to choose abortion to prevent making inadequate protection a central part of our laws that guarantee. equality to all.

Forcing motherhood on a woman threatens her constitutional rights in two ways.

First, the state's interference with abortion violates the principle of bodily integrity that forms the basis of much of the Fourteenth Amendment's promise of liberty.

Since bearing a child involves the most intimate and strenuous exercises of the body and mind, compelling a woman to devote her body, mind and soul to continue an unwanted pregnancy is an invasion of our deepest sense of privacy and the primacy of self-determination.

Also, forcing a continued pregnancy violates a woman's physical liberty by subjecting her to physical burdens and risks that range from prolonged discomfort and pain to, possibly, death.

Second, the state's interference with abortion denies women their ability to control their lives in the most basic manner.

To bear and raise children often puts severe restraints on women's employment opportunities which threaten their ability to support themselves and their families.

Forcing motherhood on teenagers who have not completed a basic education and are not psychologically and financially equipped to properly care for their children will to a large extent determine the paths of their lives before they can even develop their own identities and aspirations.

Restricting abortion contradicts the constitutional promise of personal autonomy and limits women's ability to participate equally with men in the public world.

RECOMMENDED READING

ROE V. WADE: The untold story of the landmark Supreme Court decision that made abortion legal.

Based on numerous interviews pro and con, this very readable book emphasizes the flavor of the personalities and gives a clear picture of the issues of the case.

The book is written by Marian Faux, author or CHILDLESS BY CHOICE, and published by Mentor Book in 1988. It sells as a paperback for $4.95. It is available for borrowing at the League office.

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